ALJDEC decisions subject to certification as final

2010A-308472891-ROC · Registrar of Contractors · 2010-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 6, 2010 APPEARANCES: Rockey Lee Swanson, doing business as R L S Contracting and Designs, appeared personally. The Registrar of Contractors was represented by Assistant Attorney General Montgomery Lee. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Registrar of Contractors (“Registrar”) is the authority for licensing and regulating construction contractors in the State of Arizona. 2. On March 26, 2010, Rockey Lee Swanson, doing business as R L S Contracting & Designs (“Applicant”), filed an Application for Contractors License with the Registrar. 3. By letter dated May 3, 2010, the Registrar notified Applicant that his license application had been denied based on the following: 1. Rockey Lee Swanson has failed to establish good character and reputation as required by A.R.S. § 32-1122.D. 2. Rockey Lee Swanson has been convicted of a felony, which would constitute a violation of A.R.S. § 32-1154.A.8, if a license were to be issued.

4. The Registrar’s May 3, 2010 letter set forth the factual bases for the Registrar’s decision to deny Applicant’s license application. 5. Applicant timely appealed the Registrar’s denial of his license application. The Registrar designated the appeal as Case No. 2010- [number redacted]. 6. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. In his license application, Applicant disclosed to the Registrar that he had a criminal history. On January 29, 2010, Applicant executed a Criminal Records Disclosure Form (“Disclosure”) that he submitted to the Registrar. The Disclosure requires applicants to provide the following information: Please list all felony convictions, starting with the most recent. Use additional sheets if necessary. A conviction will not automatically prevent you from obtaining a contractor’s license, but failure to disclose a conviction can result in a license denial or revocation of the license after issuance. You may also be subject of [sic] a criminal investigation and prosecution should you falsify a license application.

8. In his Disclosure, Applicant answered “Yes” to the following question: Have you ever been convicted of a felony? The fact that you entered into a plea bargain and pled “no contest”, or that your conviction has now been vacated, pardoned, expunged, dismissed, appealed or reduced to a misdemeanor, or that you now have your Civil Right [sic] restored does not mean that you can answer the question “no.” Answer “yes” if you have had a felony conviction.

9. In his written Disclosure, Applicant disclosed that he had been arrested on February 8, 2003, and subsequently convicted of the felony crime of Forgery in the Superior Court of Maricopa County, Arizona. Applicant stated that he was released from probation or parole on August 4, 2004. Applicant did not disclose any additional felony convictions. 10. The Registrar investigated Applicant’s criminal history during the processing of his license application. 11. In 1997, Applicant was convicted of felony DWI in the Circuit Court of Macon County, Missouri. Applicant failed to disclose this felony conviction to the Registrar. 12. The Registrar alleges that Applicant failed to disclose a 1997 felony charge of Passing Bad Checks. On January 29, 1997, Applicant was charged with felony Passing Bad Checks in Macon County Associate Circuit Court, Criminal Division. On March 3, 1997, the charge was disposed of by the Court as a reduced misdemeanor conviction of Passing Bad Checks, as indicated in Court documentation. Applicant was sentenced to a period of incarceration in the Macon County Jail and unsupervised probation. Applicant’s testimony at hearing was consistent with the Court’s documentation as to the disposition of that charge as a misdemeanor conviction. Therefore, Applicant was not required to disclose his misdemeanor conviction for the felony charge of Passing Bad Checks per the Disclosure’s instructions. 13. Applicant has two felony convictions instead of three felony convictions as alleged by the Registrar. 14. On December 15, 2008, the Maricopa County Superior Court Ordered that Applicant’s civil rights be restored, as well as his right to possess a firearm, in Applicant’s 2003 felony Forgery conviction. The Court denied Applicant’s request to vacate the judgment of guilt and dismiss the charges against Applicant in that criminal case. 15. Applicant has submitted evidence that he has the requisite technical experience required for licensure. 16. Applicant failed to establish credible rehabilitation necessary to establish good character and reputation for licensure. Applicant’s two felony convictions and his failure to disclose his felony DWI to the Registrar reflect lack of good character and reputation. CONCLUSIONS OF LAW 1. The Registrar has subject matter jurisdiction in this appeal. 2. Pursuant to A.R.S. § 41-1092.07(G) (1) and A.A.C. R2-19-119(B), Applicant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Applicant failed to sustain his burden of establishing good character and reputation, as required by A.R.S. § 32-1122(D). The evidence of record supports this conclusion. 4. Applicant’s two felony convictions would constitute violations of A.R.S. § 32-1154(A) (8), if a license were to be issued by the Registrar. 5. The evidence of record supports the Registrar’s denial of Applicant’s license application. RECOMMENDED ORDER Applicant’s appeal shall be dismissed and the Registrar’s denial of Applicant’s license application shall be upheld and affirmed on the effective date of the Order entered in Case No. 2010-[number redacted]. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, July 26, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826